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  1. #1
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    May 2015
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    Default Tenant's Rights When Given Notice to Vacate an Illegal Apartment

    My question involves landlord-tenant law in the State of: NY -Nassau county

    I have been renting an upstairs apartment for almost 3 years. I am an awesome tenant, always paid my rent on time and so far have had a great relationship with the landlord. The first of last month, my landlord came to collect the rent and he advised me that someone called the town on him (hes going thru a nasty divorce, so he assumes his ex wife) and that he had court the next day. apparently the house was only zoned for one family and he split it into 2. I had absolutely no idea the apartment was illegal, if i had, I would not have rented it, due to the fact that the last apartment i was in, this exact same thing happened. (I even found this one through a realtor!) He came into my job after court and told me they are coming to remove the kitchen and the doors and i need to find somewhere to go very soon. A couple weeks went by and I hadnt heard anything from him, so I texted him asking if it was possible for me to stay without a kitchen, and he said the town is really on his back and that would be out of the question.I have to go. so... I started packing, and trying to find something, to no avail yet. So then he texts me yesterday and asks if he can come by and pick up the rent on Tues, but the next text he states that they are coming in 2 weeks to remove the kitchen. So, he wants me to pay him 1600 for a whole months rent AND they are coming to remove the doors and the kitchen in 2 wks AND i still need to come up with first last and security to find a new place?! I have the rent, thats not the problem...it just seems unethical for him to even ask...so I texted him back this big long thing and asked him to give me a break due to the circumstances..how can he expect me to pay all that and not have those amenities? im really in a tough position now...blah blah blah...His response was "the rent is still 1600." And then I heard knocking at the front door about a half hour later and when i looked out the window i swore it was him walking away, but Im not sure. But now I am pissed. This just doesnt seem right to me. He has my security deposit. i was hoping to find something in the next 2 weeks before they take the kitchen and door and just leave but what should i do? what are my rights? I have a month to month lease.

  2. #2
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    Sep 2005
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    Default Re: Tenant's Rights When Given Notice to Vacate an Illegal Apartment

    Quote Quoting Elacious
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    The first of last month, my landlord came to collect the rent and he advised me that someone called the town on him (hes going thru a nasty divorce, so he assumes his ex wife) and that he had court the next day.... He came into my job after court and told me they are coming to remove the kitchen and the doors and i need to find somewhere to go very soon.
    So you were told on April 1 that your landlord had been summoned to court, and were told on April 2 that you would have to move due to ordinance violations?

    If you're month-to-month, your tenancy can be ended upon not less than thirty days notice, although notice should be in writing. From what you've told us, you've already had two months of notice that this day was coming.
    Quote Quoting Elacious
    So then he texts me yesterday and asks if he can come by and pick up the rent on Tues, but the next text he states that they are coming in 2 weeks to remove the kitchen. So, he wants me to pay him 1600 for a whole months rent AND they are coming to remove the doors and the kitchen in 2 wks AND i still need to come up with first last and security to find a new place?
    The removal of the kitchen would constitute a material breach of the lease, and a constructive eviction. There's some question at this point, at least from our end, as to whether your tenancy has already been terminated such that your holding over, or if the landlord is trying to have things both ways -- continue to rent to you despite knowing the unit to be illegal without actually terminating your tenancy. If you work out a deal to continue to rent illegally without a kitchen, you can try negotiating with your landlord over the rent; he can decline (either because he wants more money or because he is deciding that he actually does have to obey the law).

    Some municipalities have ordinances that provide rights to a tenant who is forced to move out of an illegal accessory apartment. You should check the ordinances relevant to your community.

    We're not in a position to tell you what your landlord might do if you don't pay the rent demanded on June 1. If he understands his obligations as a landlord he would have to give you notice to pay or quit and, if you don't pay, take you to court. If he does not, he may attempt an illegal self-help eviction.

    You are in a pretty good position to be able to argue to a court that you can walk away at any time without further obligation, as your unit is not a legal rental unit, your landlord knows it isn't legal, and your landlord has announced that he's going to remove crucial amenities from your unit. But if you can work something out that keeps you from having to go to court, odds are everybody is going to be happier -- getting a money judgment several months from now isn't going to help you move.

  3. #3
    Join Date
    Mar 2013
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    18,340

    Default Re: Tenant's Rights When Given Notice to Vacate an Illegal Apartment

    Quote Quoting Elacious
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    what should i do? what are my rights?
    I agree with Mr K's analysis with one caveat.

    You have absolutely no documentation that any of this is really happening. It's just the landlord's sayso. I can't imagine anybody cooking up something so elaborate to get a tenant out but, still, with $1600 at stake I suggest the following precautions:

    Confront the landlord and demand a copy of the citation, the court disposition and a copy of his contract with whoever is coming to tear out the kitchen.

    He says he went to court. Check the local court for his name and see if there is a recent case file.

    Call the city and confirm that an inspector issued a citation and what the disposition was.

    As for the termination notice there appears to be a contradiction in the NY statutes.

    Section 228 requires written notice.
    Section 232-A requires written notice.
    Section 232-B does not mention written notice.

    http://codes.lp.findlaw.com/nycode/RPP/7

    I would generally consider an a month to month tenancy as synonymous with an at will tenancy.

    At any rate, it's up to you whether you want to pay him or not. Under the circumstances, however, you have more leverage if you keep your money in your hand and no leverage if you hand it to the landlord.

    Another issue. Is he even entitled to collect rent on an illegal apartment. I suggest checking on that, too. The city or county inspector might be able to cite you the code if there is one.

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